1
EXHIBIT 10.8
MEDICAL DOCTOR
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is entered into this _____
day of _____________________________, 199___, between ________, a __________
corporation ("Employer"), and _______, an individual or professional
corporation ("Employee").
RECITALS
A. Employer is a professional corporation which provides
healthcare services in the State of __________ at the office located at
_______________ the ("Office"). Employer wishes to employ Employee, an
individual who is actively practicing and is duly licensed to provide medical
services in the State of __________, as an employee to treat the patients of
the Office, subject to the rules thereof and the standards of the profession in
effect in the State where the Office is located.
B. Employee is willing to be employed by Employer, and Employer
is willing to employ Employee, all in accordance with the terms, covenants and
conditions hereinafter set forth.
C. Employee is willing to be employed by Employer and perform
all duties and services incident to his position, and such other duties as may
be prescribed by the Board of Directors of the Company from time to time.
NOW, THEREFORE, in consideration of the mutual premises and
covenants herein contained, the parties hereto agree as follows:
1. NATURE OF EMPLOYMENT
1.1 Engagement. Employer does hereby employ and engage
Employee as a Doctor of Medicine at the Office. Employee shall provide services
within the parameters regulating professionals in the State in which the Office
is located, as established in applicable federal and State local statutes,
rules, regulations and ethical standards; perform such other duties as
customarily are performed by a professional holding such a position.
1.2 Promotion Of Services. Employee shall exercise best
efforts to promote the Office and the services rendered therein to the extent
permitted by law, the applicable canons of professional ethics and the policies
and procedures of Employer.
1.3 Application Form. Employee will complete and timely
submit an Credentialing Application provided to Employee by Employer.
1.4 Call Schedule. Employee shall be available at all reasonable
times as mutually agreed upon by Employee and Employer and shall be "on call"
and capable of being available via phone or fax within one (1) hour after being
called by Employer during established "on call" time periods.
1.5 Insurance Coverage. Employee shall, during the term of this
Agreement, be and remain qualified for insurance coverage under a policy or
policies of professional liability malpractice insurance with a nationally
recognized insurance carrier, under terms acceptable to Employer. Employee shall
provide and maintain, or cause to be provided and maintained, during the term of
this Agreement, professional liability malpractice coverage with a nationally
recognized insurance carrier, under terms acceptable to Employer, in an
aggregate amount of not less than one million dollars ($1,000,000.00) per
occurrence and three million dollars ($3,000,000.00) annual aggregate. Such
insurance shall be purchased by Employee, naming and insuring Employee, Employer
and the officers and directors of Employer, jointly and severally, from and
against any and all liability, costs, damages, expenses and attorneys' fees
resulting from or attributable to professional acts and/or omissions of Employee
at or through the Office as authorized under the terms of this Agreement.
2
1.6 Working Hours. Employee shall devote Employee's best
efforts to the practice of medicine pursuant to the terms of this Agreement.
Standard working hours for Employee at the Office shall be as follow:
Day Time
-----------------------------------
-----------------------------------
-----------------------------------
1.7 Additional Employment. The Employee shall devote his best
efforts to the practice of medicine pursuant to the terms of this Agreement. The
Employer may, during the term of this Agreement, otherwise engage in the
practice of medicine outside of the Company, provided that such practice does
not interfere with Employee's abilities to discharge Employee's obligations
under this Agreement.
1.8 Personal Services Contract. This is a personal services
contract between the parties, and, as a result, Employee may not assign or
delegate any rights, duties or obligations established herein without the prior
written consent of Employer, which consent may be withheld in Employer's sole
and absolute discretion. Employer may assign this Agreement, in whole or in
part, in its sole and absolute discretion without the consent of Employee.
2. MANNER OF PERFORMANCE
2.1 Performance Standards. Employee agrees that Employee
shall at all times faithfully, industriously and to the best of Employee's
ability, perform all of the duties required hereunder to the reasonable
satisfaction of Employer. Such duties shall be rendered at the Office as
hereinabove set forth, and at such other place or places as Employer shall in
good faith require. Employee agrees to comply with all standards established by
or on behalf of Employer for the purpose of attempting to ensure the quality of
patient care provided in or through the Office.
2.2 Not Applicable
2.3 Not Applicable
2.2 Management of Practice. Employee recognizes,
acknowledges and agrees that Employer's professional practice is managed by
Complete Wellness Centers, Inc. ("Manager") pursuant to that certain Management
Agreement between Employer and Manager ("the Management Agreement"), the general
provisions of which have been made known to Employee, and Employee will abide by
the terms and conditions contained therein to the extent that such terms are
known by Employee and directed to the provision of professional services at the
Office. In addition, several of the management services have been subcontracted
to ____________("Clinic Manager"). As part of the Management Agreement, the
Manager and the Clinic Manager shall provide and maintain, or cause to be
provided and maintained, during the term of this Agreement, such facilities,
equipment and supplies as it deems necessary for the performance by the
Employer of the duties required under this Agreement.
2.3 Rules and Regulations. Employee shall observe and comply
with all rules, regulations, policies, procedures and protocols of Employer and
shall faithfully carry out the orders and directions of its officers and
directors. Employee acknowledges and agrees that Employer has final authority
with regard to the acceptance of patients and the fees to be charged to such
patients with respect to professional services rendered at or through the
Office.
2.4 Claims Processing. Employee shall cooperate with
Employer in providing information, data, documents and forms needed to process
bills, charges or claims arising out of the professional services rendered to
patients at the Office.
2.5 Utilization Review and Quality Assurance. Employee shall
practice in a manner consistent with, and remain subject to, any utilization or
quality assurance review processes which Employer may institute in regard to its
-2-
3
practice.
2.6 Medical Records. Employee shall maintain adequate and
complete records in regard to services rendered to patients. Upon the expiration
or termination of this Agreement, Employer shall retain all patient records and
charts, provided that copies thereof shall be made available to Employee and the
patient in accordance with law and prudent medical practice in order to permit
the continuity of patient care and protect the confidentiality of patient
medical information.
2.7 Patient Consent. Prior to undertaking any treatment
regimen or implementing any treatment plan, Employee shall examine the patient
to determine that the procedure(s) provided thereby are suitable; where
necessary, inform the patient of the nature of the risks of and alternatives to
such procedure(s); where appropriate, secure authorization and consent to such
action and obtain for Employer's files such written consents and forms as may be
required by federal, state and local law or prudent medical practice.
2.8 Patient Accounts. All patients shall be and remain the
patients of Employer, provided that Employee shall exercise independent
responsibility for the care and treatment of such individuals to the extent
professional services are rendered pursuant to this Agreement. In the event any
patient is deemed by operation of law or otherwise to be a patient of Employee,
Employee shall and hereby does (i) irrevocably assign all accounts receivable
from the treatment of such individuals to Employer, and (ii) irrevocably appoint
Employer as the agent and true and lawful attorney-in-fact, with full power of
assignment and substitution, to ▇▇▇▇ patients on Employee's behalf; to collect
accounts receivable from all payors; and to take possession of and endorse in
Employee's name all notes, drafts or instruments received by way of payment for
such services (except where prohibited by law or regulation). Employer shall
perform, either itself or pursuant to an agreement with another individual or
entity, billing and collections for all services provided by Employee. The
Employee hereby authorizes the Employer to accept, on behalf of the Employee,
any assignment of insurance benefits (e.g., Medicare, Blue Cross/Blue Shield,
etc.) from the Employee pursuant to this Agreement. At the request of the
Employer, Employee shall list and designate with such insurance or other third
party payor programs the address of the Employer, to the attention of such
office(s) of the Employer as the Employer shall designate, or such other address
at the Employer may designate, as the sole addressee to which all payment(s) or
payment voucher(s) for services performed by the Employee shall be mailed. This
Agreement shall constitute an assignment by the Employee to the Employer for all
funds owing or collected for services rendered by the Employee pursuant to this
Agreement, and the Employee shall take all additional steps reasonably requested
by the Employer to assist in the billing and collection of funds due for
services rendered by the Employee. All funds collected with respect to services
provided pursuant to this Agreement shall be the exclusive property of the
Employer.
2.9 Independent Judgment. Although Employee is an employee of
Employer under the terms of this Agreement, Employee shall retain independent
discretion and exercise independent judgment in the manner and means of
providing services in regard to the diagnosis and treatment of patients treated
at the Office. Employee is under the control of Employer as to the results of
his work and not as to the means by which such results are accomplished.
3. TERM
3.1 Term. Except as otherwise provided herein, the term of
this Agreement shall be for a period of days (the "Initial Term"), unless
terminated as hereinafter provided, and thereafter automatically shall renew for
successive one-year terms unless earlier terminated as provided for herein.
3.2 Not Applicable
-3-
4
4. COMPENSATION AND BENEFITS
4.1 Compensation. Employee shall be compensated at a rate of
$ dollars per hour, payable, as earned every other Friday, one week in advance,
during the term of this Agreement. The Employee Compensation shall be subject to
increase at any time, in Employer's sole discretion based upon Employee's level
of performance under the terms of this Agreement and such other relevant factors
as Employer may reasonably apply.
4.2 Not Applicable
4.3 Not Applicable
4.4 Sole Benefits. Employee acknowledges that the compensation
and benefits established pursuant to this Section shall be the sole
consideration provided by Employer for the services provided under the terms of
this Agreement. Employee shall not solicit or accept payment from any patient,
government entitlement program or third party payor for services rendered
pursuant to this Agreement.
4.5 Reimbursement. Expenses incurred by Employee on
Employer's behalf at Employer's written direction shall be reimbursed in full
where approved in advance. In the event an expense paid on behalf of, or
reimbursement contributed to, Employee is determined not to be an allowable tax
deduction or credit of Employer and such determination is acceded to by Employer
or rendered final by the State or federal taxing authority or court with final
jurisdiction, Employee shall forthwith, upon ten (10) days' prior written notice
and without regard to whether this Agreement shall then be terminated, reimburse
Employer for the full amount of the out-of-pocket loss incurred by Employer as a
result of any such disallowance.
5. NONDISCLOSURE OF INFORMATION CONCERNING CONFIDENTIAL BUSINESS
INFORMATION, PATIENT RECORDS AND TRADE SECRETS
5.1 Employee Position. Employee recognizes that Employee's
position with Company requires considerable responsibility and trust, and, in
reliance on Employee's loyalty, the Company may entrust Employee with highly
sensitive confidential, restricted and proprietary information involving Trade
Secrets and Confidential Information.
5.2 Trade Secrets and Confidential Information. For the
purposes of this Agreement, a "Trade Secret" is any scientific or technical
information, design, process, procedure, formula or improvement that is valuable
and not generally known to competitors of the Company. "Confidential
Information" is any data or information, other than Trade Secrets, that is
important, competitively sensitive, and not generally known by the public,
including, but not limited to, the Company's initial development plans, bidding
and pricing procedures, market strategies, internal performance statistics,
financial data, confidential personnel information concerning employees of the
Company, supplier data, operational or administrative plans, policy manuals, and
terms and conditions of contracts and agreements. The terms "Trade Secret" and
"Confidential Information" shall not apply to information which is (i) already
in Employee's possession at the time of employment (unless such information was
used in connection with formulating the Company's initial business plan,
obtained by Employee from the Company or was obtained by Employee in the course
of Employee's employment by the Company), (ii) received by Employee from a third
party with no restriction on disclosure, or (iii) required to be disclosed by
any applicable law.
5.3 Confidential Information. Employee acknowledges and agrees
that he will have access to certain confidential information and trade secrets
of the Employer and that such information constitutes valuable, special and
unique property of Employer. Employee further acknowledges and agrees that
Employee will not, at any time during or after the term hereof, in any fashion,
form, or manner, either directly or indirectly, divulge, disclose or communicate
to any person, firm, or corporation, in any manner whatsoever, the terms and
conditions of this Agreement or any information of any kind, nature or
description concerning any matters affecting or relating to the business of the
Employer, including, without limiting the foregoing, the names of patients, the
prices which Employer pays for goods or services or at which it provides
services or sells products or goods, Employer's manner of operation referring
services or
-4-
5
business of the Employer, plans or processes, or any other data or information
of any kind, nature or description which affects or relates to Employer's
business, without regard to whether any or all of the foregoing would be deemed
confidential information or a trade secret under applicable State law
("Confidential Information").
5.4 Patient Information. Employee agrees that:
5.4.1 all patient names, addresses, telephone numbers,
files, and records (collectively, "Patient Records") are and shall remain in the
custody and control of Employer, and, except as necessary and permitted for
insurance or other purposes directly related to the operation of the Office or
proper patient care, or as authorized by law or patient consent, Employee shall
not remove, copy, transfer, or transmit to any person, natural or corporate, any
Patient Records at any time;
5.4.2 each Patient Record has a reasonable value to
Employer of $5,000.00, and for each record, or any portion thereof, which
Employee attempts to obtain and/or actually does obtain in contravention of this
Section, the sum of $5,000.00 shall be paid to Employer as liquidated damages.
The referenced sum shall be due and payable immediately upon the date of the
violation or attempted violation of this Section, with such sum to bear interest
at the maximum allowable legal rate from the due date to the actual date of
payment in full; and
5.4.3 an actual or attempted violation of any provision
of this Section by Employee, either directly or indirectly, shall be grounds for
immediate termination of this Agreement.
5.5 Injunctive Relief. Employee recognizes and agrees that a
violation of any of the provisions contained in this Section may cause
irreparable damage and substantial loss to the goodwill of the Employer to
Employer. The knowledge of the Employee of these matters would enable the
Employee, upon termination of this Agreement, to compete with the Corporation.
The exact amount of such damage of which may be impossible to ascertain, and
that, for such reason, among others, Employer shall be entitled to an injunction
without the necessity of posting bond therefor in order to restrain any further
violation of such provisions. Such right to an injunction shall be in addition
to, and not in limitation of, any other rights and remedies Employer may have
against Employee, whether in law or equity, otherwise available under the terms
of the is Agreement or under federal, state and local statutes, rules and
regulation, including, but not limited to, the recovery of damages. The terms
and conditions of this Section shall survive termination of this Agreement.
6. COVENANT NOT TO COMPETE
6.1 Not Applicable
6.2 Not Applicable
6.3 Not Applicable
7. COVENANT NOT TO SOLICIT
Not Applicable
8. REPRESENTATIONS AND WARRANTIES
8.1 Representations and Warranties. Employee represents and
warrants that he or she:
8.1.1 is and shall remain at all times during the term
of this Agreement a professional licensed to provide services in the State in
which the Office is located;
8.1.2 is not subject to any restriction that would
prohibit entering into this Agreement, is fully able
-5-
6
to perform each of the terms, conditions and covenants hereof, and is not
restricted or prohibited from entering into or performing any of the terms or
conditions hereof; and
8.1.3 is able to execute and perform under this Agreement
without violating or breaching any agreement between Employee and any other
person or entity.
8.2 Accuracy of Representations. Employee acknowledges and
agrees that the truth and accuracy of the representations and warranties
contained herein constitute a condition precedent to Employer's obligation to
provide compensation pursuant to the terms and conditions of this Agreement.
8.3 Cooperation In Dispute Resolution. Employee recognizes that
certain disputes may arise between Employer and third parties, the resolution of
which may require the cooperation of Employee, including, but not limited to,
Employee's providing factual information and giving depositions and testimony in
judicial and administrative proceedings. Employee shall, during the term hereof
and at all times after termination, cooperate with Employer to allow it to
advance its position with respect to such disputes. Employer shall pay Employee
UP TO $250 per day for such assistance and to reimburse Employee for all
out-of-pocket expenses incurred in connection with such cooperation, provided
that Employee obtains Employer's agreement in advance so to do and provides
Employer with an itemized written account of such reimbursable expenses. The
terms and conditions of this Section shall survive termination of this
Agreement.
9. INDEMNITY
Employee hereby agrees to indemnify, defend and hold Employer
harmless from and against any and all costs, losses, claims, demands and
liabilities, including reasonable attorneys' fees and costs, which arise out of
or relate to any breach by Employee of any of the terms or conditions of this
Agreement; any negligent or intentional wrongful act of Employee; any act or
omission of Employee which constitutes professional negligence; or any other act
of Employee not authorized under the terms of this Agreement. If Employer or any
of its shareholders or affiliates is made a party to any litigation or
obligation or otherwise incurs any loss or expense as a result of Employee's
activities unconnected with Employer's business at the Office, Employee shall
forthwith upon demand reimburse Employer or such individuals for any and all
expenses incurred as a result thereof. The terms and conditions of this Section
shall survive termination of this Agreement.
10. TERMINATION
10.1 Termination By Employer. Employer shall have the right
to terminate Employee's employment hereunder forthwith upon, or at any time
after, the occurrence of one or more of the following events:
10.1.1 Nonperformance of Employee's duties as an Employee
for whatever reason, including Employee's disability for which Employer can make
no reasonable accommodation. The term "disability" shall mean, for purposes of
this Agreement, the inability of Employee to perform full-time regular duties as
contemplated hereunder on account of a physical or mental condition for a period
of 30 consecutive days, but shall exclude infrequent and temporary incapacity
due to ordinary illness;
10.1.2 Employee's theft or other act of dishonesty;
10.1.3 The death of Employee;
10.1.4 The attempt by Employee to alienate, encumber, sell,
transfer, assign, hypothecate or pledge to any person, natural or corporate,
shares of stock of Employer, if then holding any, without the Employer's express
written consent or in violation of law or in a manner prohibited by the Articles
of Incorporation of Employer, the Bylaws of Employer, the Staff Bylaws, the
shareholder agreements affecting the shares of stock of the Employer, or the
provisions of this Agreement;
-6-
7
10.1.5 The inability of Employee to qualify for malpractice
insurance upon terms acceptable to, with an insurance carrier approved by,
Employer as required herein;
10.1.6 A determination by Employer that Employee has
acted in a manner contrary to the canons of professional ethics or the
provisions of the Staff Bylaws or the Management Agreement, as such provisions
or documents may be modified from time to time;
10.1.7 The unlawful harassment of other employees
(including sexual harassment) or the conviction of Employee of a felony or other
crime involving moral turpitude;
10.1.8 The abuse of drugs or alcohol;
10.1.9 The suspension, revocation or cancellation of
the Employee's right to practice as a professional in the State in which
services are provided hereunder;
10.1.10 The discovery by Employer that any of the
information contained in the Credentialing Application is incorrect or false as
of the date of completion;
10.1.11 The material breach by Employee of any of the
provisions, representations, warranties or covenants established herein, or the
repeated failure by Employee to comply with the policies and procedures of
Employer or observe the orders and directions of its officers and directors;
10.1.12 A material adverse change in the business or
economic prospects of Employer, as determined in Employer's discretion;
10.1.13 Upon the provision of thirty (30) days' prior
written notice;
10.1.14 Not Applicable
10.1.15 Not Applicable
10.1.16 Not Applicable
10.2 Termination By Employee. Thereafter, Employee may
terminate this Agreement on thirty (30) days' prior written notice. Employee
agrees that if Employee breaches this Section, Employee will be liable, in
addition to any other rights and remedies at law, for all of Employer's lost
profits as a result of the breach, the costs incurred in obtaining the personnel
necessary to staff the Office as a proximate cause of the breach, and attorneys'
fees incurred as a result of any legal action brought to enforce the terms of
this Agreement.
10.3 Duties Upon Termination. Employee hereby irrevocably
agrees to return to Employer any and all copies of forms, documents or records
which contain Confidential Information forthwith upon termination of this
Agreement. Employer shall, as of the effective date of termination of
this Agreement, be released of any responsibility or obligation hereunder
except payment of compensation and benefits accrued to the effective date of
such termination.
11. POST-TERMINATION DUTIES
11.1 Not Applicable
11.2 Not Applicable
-7-
8
12. MISCELLANEOUS
12.1 Not Applicable
12.2 Enforcement. Employer and Employee acknowledge that
Employee will be providing services hereunder which are of a personal, special,
unique, unusual and extraordinary character. In recognition thereof, Employee
agrees that, under certain circumstances, a breach of this Agreement cannot
reasonably be compensated in damages and that Employer shall, under such
circumstances, be entitled to injunctive relief. However, no remedy made
available by virtue of this Section shall be exclusive of any other remedy
available to the litigant, and each and every remedy hereunder shall be in
addition to all other remedies available at law or in equity.
12.3 Not Applicable
12.4 Not Applicable
12.5 Not Applicable
12.6 Commitments Binding Only Upon Written Consent.
Notwithstanding any provision herein to the contrary, it is expressly understood
and agreed that Employee shall not have the right to make any contracts or
commitments for or on behalf of Employer or the Office without the prior written
consent of Employer.
12.7 Not Applicable
12.8 Waiver. No waiver or modification of this Agreement or any
covenant, condition, or limitation herein shall be valid unless in writing and
duly executed by the parties hereto, and no evidence of any waiver or
modification shall affect this Agreement, or the rights or obligations of any
party hereunder, unless such waiver or modification is in writing and duly
executed by the parties hereto. The parties hereto further agree that the
provisions of this Section may not be waived except as herein set forth.
12.9 Governing Law; Headings. This Agreement and performance
hereunder shall be construed and enforced, and all lawsuits and special
proceedings arising out of or related hereto shall be conducted, in accordance
with the laws of the State in which services are rendered by Employee pursuant
to this Agreement. The Section and Paragraph headings contained herein are for
convenient reference only and shall not affect the meaning or interpretation of
this Agreement.
12.10 Blue Lining; Severability. In the event any provision
of this Agreement is held to be unenforceable or invalid under the laws of the
United States or the State in which services are rendered by Employee pursuant
to this Agreement, the parties hereto agree that such provision shall
automatically be deemed modified for purposes of performance of this Agreement
to the extent necessary to render it lawful and enforceable, or if such
modification is not possible without materially altering the intent of the
parties hereto, that such provision shall automatically be deemed severed from
this Agreement. The validity of the remaining provisions of this Agreement shall
not be affected by any such modification or severance.
12.11 Not Applicable
12.12 Not Applicable
12.13 Not Applicable
12.14 Not Applicable
12.15 Not Applicable
-8-
9
12.16 Not Applicable
12.17 Not Applicable
12.18 Not Applicable
IN WITNESS WHEREOF, the parties hereto have executed this instrument, or caused
its execution by a duly authorized officer, all as of the day and year first
above written.
"EMPLOYER"
-----------------------------------
[Name of Employer]
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
Address:
-----------------------------------
-----------------------------------
-----------------------------------
"EMPLOYEE"
-----------------------------------
[Name of Employee]
-----------------------------------
[Signature]
Address:
-----------------------------------
-----------------------------------
-----------------------------------
-9-
